The Prescription Proscription

Many states are making it hard for data-mining companies to use Rx information for marketing purposes.

Penelope Lemov is a GOVERNING correspondent. She was GOVERNING's health columnist and was senior editor for several award-winning features.

Say this for Maine: Almost every time the state goes to the health care well, it gets sued. Dirigo, its groundbreaking health care reform plan, has had its share of court challenges. Ditto the state's previous attempts to tame health care costs or urge small businesses to offer health insurance to their workers.

This time around, the legal problems relate to data-mining. Six pharmaceutical data-mining companies are going after a new law Maine legislators passed last summer that says doctors and others who prescribe drugs can opt out of having their prescriptive information used by data-mining firms. That is, the law allows physicians or other prescribers to just say no to having these firms download, massage and search for trends in the prescriptions they've written for their patients - information that could then be sold to drug companies to use in marketing their drugs to medical professionals.

The data-mining firms see Maine's proposal as not only bad for business but also unconstitutional - a negation of their corporate right of free speech. And it's not the first time they've taken a data-mining Rx proscription law to court. In 2006, New Hampshire passed an even more stringent mandate that sought the outright ban of the collection of physician prescription data for commercial use. That law was struck down by a federal court this past May, and the state is appealing the decision. Vermont, which recently passed a data-mining law similar to Maine's, also has been hauled into court.

The three New England data-mining laws are far from a regional phenomenon. About 20 other states currently are considering similar legislation. A big part of the issue for state legislators is the effect data-mining could have on the drug bill a state pays - more specifically, on the cost of drugs in state Medicaid programs, state corrections facilities and programs that insure state employees.

Sharon Treat, the state representative who introduced Maine's bill, sees a link between the kind of marketing that data-mining supports and the cost of drugs. For instance, most state Medicaid programs have a preferred-drug list (PDL) that favors the use of generics. But the marketing that's done with knowledge of a doctor's prescribing patterns aims to focus that doctor's attention on brand-name drugs - which are more expensive. "It's hard enough to get docs to stick to PDLs," says Treat, who also heads up the National Legislative Association on Prescription Drug Prices. "Data-mining isn't the only thing affecting prescription practices, but it's become increasingly important."

The data-mining question, though, goes beyond drug prices. Legislators - and their constituents - have an almost visceral reaction to the concept. And nowhere is that more keen than in information about our health - what pills we take, what operations we've had, what our lab tests say about us. There is a fear that, although the data-miners take anonymous bits of information, their reassembling of that data could somehow be traceable to a real person. In a rural state such as Maine, Treat points out, it would be easy to take data from the practice of a physician in a small town and figure out which patients it applied to.

Although the feds passed a privacy law a decade ago, that law was written prior to the emergence of many of the issues that are cropping up with the use of electronic data. Technology is outstripping the ability of current laws to keep track of privacy interests and make sure people are protected. This is what has legislators so concerned - and is a reason so many of them are getting involved in legislation that would put limits on data-mining of prescription drug information.

Here's another way to look at that concern: The same week that New Hampshire lawmakers passed the state's prescription data-mining prohibition, those same lawmakers debated whether to opt out of the federal REAL ID program, which would have required the state to gather information about drivers it licensed and store it in nationally connected databases. Eventually, legislators said no to that idea, too. The actions on both bills underscore a heightened awareness about personal information flying around the Internet at the click of a send button.

"Every session we have a looming budget crisis within Medicaid," Treat says. That is the practical reason why legislators are focusing on data-mining and its effect on prescription drug costs. But data-mining is an issue where constituents are tuned in as well. "They don't like it," Treat reports. "And they talk to legislators about that.

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